Vermont Right to Life Committe v. Sorrell et al.
Filing
OPINION, affirming judgment of the district court, by RCW, CFD, V.L. BRICCETTI, FILED.[1262544] [12-2904]
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12‐2904‐cv
Vermont Right to Life Committee, Inc., et al. v. Sorrell, et al.
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In the
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United States Court of Appeals
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For the Second Circuit
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August Term, 2012
No. 12‐2904‐cv
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VERMONT RIGHT TO LIFE COMMITTEE, INC. AND VERMONT RIGHT TO
LIFE COMMITTEE – FUND FOR INDEPENDENT POLITICAL EXPENDITURES,
Plaintiffs‐Appellants,
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v.
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WILLIAM H. SORRELL, IN HIS OFFICIAL CAPACITY AS VERMONT
ATTORNEY GENERAL, DAVID R. FENSTER, ERICA MARTHAGE, LISA
WARREN, T.J. DONOVAN, VINCENT ILLUZZI, JAMES HUGHES, DAVID
MILLER, JOEL PAGE, WILLIAM PORTER, ALAN FRANKLIN, MARC D.
BRIERRE, THOMAS KELLY, TRACY SHRIVER, AND ROBERT SAND, IN THEIR
OFFICIAL CAPACITIES AS VERMONT STATE’S ATTORNEYS, AND JAMES C.
CONDOS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE,
Defendants‐Appellees.*
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Appeal from the United States District Court
for the District of Vermont.
No. 09‐cv‐188 ― William K. Sessions, III, Judge.
ARGUED: MARCH 15, 2013
DECIDED: JULY 2, 2014
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The Clerk of the Court is requested to amend the official caption as noted above.
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Before: WESLEY and DRONEY, Circuit Judges, and BRICCETTI, Judge.*
Plaintiffs, a non‐profit corporation and a Vermont political
committee, appeal from an order of the United States District Court
for the District of Vermont (William K. Sessions, III, Judge) granting
summary judgment to Defendants, Vermont officials charged with
enforcing Vermont elections statutes. The non‐profit corporation
asserts that statutory provisions requiring identification of the
speaker on any “electioneering communication,” requiring reporting
of certain “mass media activities,” and defining and requiring
reporting by “political committees” are void for vagueness and
violate the First Amendment facially and as applied. The Vermont
political committee brings an as‐applied challenge against a
provision limiting contributions to political committees. We
AFFIRM the judgment of the district court.
RANDY ELF (James Bopp, Jr., on the brief), James
Madison Center for Free Speech, Terre Haute,
Indiana, for Vermont Right to Life Committee, Inc.
and Vermont Right to Life Committee – Fund for
Independent Political Expenditures.
EVE R. JACOBS‐CARNAHAN (Megan J. Shafritz, on
the brief), Assistant Attorneys General for the State
The Honorable Vincent L. Briccetti, of the Southern District of New York, sitting
by designation.
*
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of Vermont, Montpelier, Vermont, for William H.
Sorrell, et al.
George Jepsen, Attorney General for the State of
Connecticut, Hartford, Connecticut; Maura
Murphy Osborne, Assistant Attorney General for
the State of Connecticut, Hartford, Connecticut,
for amici curiae States of Connecticut, New York,
Hawaii, Iowa, Kentucky, Minnesota, Montana, New
Mexico, and Washington, in support of William H.
Sorrell, et al.
J. Gerald Hebert, The Campaign Legal Center,
Washington, D.C., for amici curiae The Campaign
Legal Center, and Democracy 21, in support of
William H. Sorrell, et al.
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DRONEY, Circuit Judge:
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Committee, Inc. (“VRLC”) and Vermont Right to Life Committee –
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Fund for Independent Political Expenditures (“VRLC‐FIPE”). VRLC
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is a Vermont non‐profit corporation and VRLC‐FIPE is a political
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committee formed under Vermont law. Both advocate the
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“universal recognition of the sanctity of human life from conception
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through natural death.” J.A. 657, ECF No. 34. VRLC challenges
The two Plaintiffs‐Appellants here are Vermont Right to Life
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three disclosure provisions of Vermont’s elections laws, contending
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that they are unconstitutionally vague and violate VRLC’s freedom
3
of speech. First, VRLC challenges the statute requiring that
4
“electioneering communications” identify their sponsor. Second,
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VRLC challenges the statute requiring that groups engaged in any
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“mass media activity” must submit certain reports to the Vermont
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Secretary of State and relevant candidates. Third, VRLC challenges
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Vermont’s definition of “political committees” and its requirement
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that such committees submit campaign finance reports. VRLC‐FIPE
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raises an as‐applied challenge to Vermont’s limit on contributions to
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political committees, contending that VRLC‐FIPE is an independent‐
12
expenditure‐only group and therefore the limit violates its freedom
13
of speech. The Defendants‐Appellees are various Vermont officials
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responsible for enforcing Vermont’s elections laws. The district
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court (Sessions, J.) granted Defendants summary judgment on every
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claim. We AFFIRM the judgment of the district court.
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BACKGROUND
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2
I.
Parties
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VRLC is a Vermont corporation that files federal tax returns as
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a non‐profit entity under 26 U.S.C. § 501(c)(4). VRLC‐FIPE was
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formed by VRLC in 1999 as a registered Vermont political
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committee under the Vermont campaign finance statutes. VRLC‐
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FIPE contends that it is an “independent expenditure committee”
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because the resolution of VRLC creating VRLC‐FIPE provides that it
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may not “make monetary or in‐kind contributions to candidates,” or
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“coordinate
the
content,
timing
11
communications or other activities with candidates or their
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campaigns.” J.A. 1125, ECF No. 36. A third entity, Vermont Right to
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Life Committee, Inc. Political Committee (“VRLC‐PC”), also formed
14
by VRLC, engages in campaign activities, including making direct
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contributions to pro‐life political candidates. VRLC‐PC is not a
16
party in this action.
5
or
distribution
of
its
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II.
Statutory Scheme
2
This is not our first encounter with challenges to Vermont
3
election laws by VRLC entities. In Vermont Right to Life Committee,
4
Inc. v. Sorrell (“VRLC I”), 221 F.3d 376, 387, 389 (2d Cir. 2000), we
5
held that previous versions of Vermont’s electioneering
6
communication and mass media activity provisions were facially
7
unconstitutional. We also rejected a facial challenge by VRLC‐FIPE
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to Vermont’s contribution limit for political committees in a separate
9
lawsuit. Landell v. Sorrell, 382 F.3d 91, 139‐40 (2d Cir. 2004), rev’d in
10
part sub nom. Randall v. Sorrell, 548 U.S. 230 (2006).
11
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of the “electioneering communication,” “mass media activity,” and
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“political committee” provisions of Vermont’s campaign finance
14
laws. VRLC contends that the definitions of particular terms in
15
those laws render the statutes unconstitutional under the First and
In the instant case, VRLC has challenged the revised versions
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Fourteenth Amendments. VRLC‐FIPE challenges the contribution
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limits as applied to it.
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replaced its campaign finance statutes. Act of Jan. 23, 2014, 2014 Vt.
5
Acts
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http://www.leg.state.vt.us/DOCS/2014/ACTS/ACT090.PDF (codified
7
at Vt. Stat. Ann. tit. 17, § 2901 et seq.). In deciding this appeal, this
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Court must apply the law now in effect. See Starbucks Corp. v. Wolfe’s
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Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir. 2007). The previous
10
law, however, still governs VRLC‐FIPE’s as‐applied challenge to
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Vermont’s contribution limits because the new contribution limits
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do not take effect until January 1, 2015. Act of Jan. 23, 2014, 2014 Vt.
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Acts & Resolves No. 90, Sec. 8(a)(2).
14
&
Resolves
No.
90,
Sec.
2,
available
We first set out the relevant statutory language.
A.
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While this appeal was pending, Vermont repealed and
Electioneering Communication
The definition of “electioneering communication” includes:
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any communication that refers to a clearly
identified candidate for office and that
promotes or supports a candidate for that
office or attacks or opposes a candidate for
that office, regardless of whether the
communication expressly advocates a vote
for or against a candidate, including
communications published in any
newspaper or periodical or broadcast on
radio or television or over the Internet or
any public address system; placed on any
billboards, outdoor facilities, buttons, or
printed material attached to motor vehicles,
window
displays,
posters,
cards,
pamphlets, leaflets, flyers, or other
circulars; or contained in any direct
mailing, robotic phone calls, or mass e‐
mails.
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Vt. Stat. Ann. tit. 17, § 2901(6). With few exceptions, electioneering
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communications must identify “the name and mailing address of the
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person, candidate, political committee, or political party that paid
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for the communication.” Id. § 2972(a). Electioneering
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communications “paid for by or on behalf of a political committee or
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political party” must also identify certain contributors. Id. § 2972(c).
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B.
Mass Media Activity
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Mass media activities include television commercials, radio
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commercials,
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advertisements, robotic phone calls, and telephone banks, “which
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include[] the name or likeness of a clearly identified candidate for
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office.” Id. § 2901(11). A person engaging in certain “mass media
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activity” must file a report with the Vermont Secretary of State and
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send a copy to relevant candidates. Id. § 2971(a)(1). “The report
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shall identify the person who made the expenditure; the name of
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each candidate whose name or likeness was included in the activity;
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the amount and date of the expenditure; to whom it was paid; and
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the purpose of the expenditure.” Id. § 2971(b).
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communications and mass media activities apply to all individuals
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and entities engaging in such activities, not just political action
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committees.
mass
mailings,
literature
drops,
newspaper
The disclosure requirements concerning electioneering
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C.
Political Committee
A “political committee” (“PAC”) is defined as:
any formal or informal committee of two or
more individuals or a corporation, labor
organization, public interest group, or
other entity, not including a political party,
which accepts contributions of $1,000.00 or
more and makes expenditures of $1,000.00
or more in any two‐year general election
cycle for the purpose of supporting or
opposing one or more candidates,
influencing an election, or advocating a
position on a public question in any
election, and includes an independent
expenditure‐only political committee.
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Id. § 2901(13). The definition of “political committee” is based in
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part on the definitions of “contribution” and “expenditure.” Id. A
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“contribution” is “a payment, distribution, advance, deposit, loan, or
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gift of money or anything of value, paid or promised to be paid for
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the purpose of influencing an election, advocating a position on a
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public question, or supporting or opposing one or more candidates
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in any election.” Id. § 2901(4).1 As is relevant here, the term
2
“election” refers only to efforts to elect officials within the state of
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Vermont, id. § 2901(5), and “public question” refers to “an issue that
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is before the voters for a binding decision,” id. § 2901(15). An
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“expenditure” is “a payment, disbursement, distribution, advance,
6
deposit, loan, or gift of money or anything of value, paid or
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promised to be paid, for the purpose of influencing an election,
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advocating a position on a public question, or supporting or
9
opposing one or more candidates.” Id. § 2901(7).
10
Prior to the district court’s decision below, a Vermont
11
Superior Court considered a vagueness and overbreadth challenge
12
to the phrase “influencing an election” in the definition of “political
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committee” in the former version of Vermont’s campaign finance
The definition then enumerates a number of exceptions such as volunteer
services and personal loans from lending institutions. Vt. Stat. Ann. tit. 17, §
2901(4).
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statutes.2 Vermont v. Green Mountain Future, Civ. Div. No. 758‐10‐10
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Wncv, slip op. at 12 (Wash. Super. Ct. June 28, 2011), available at
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http://www.vermontjudiciary.org/20112015 Tcdecisioncvl/2011‐6‐30‐
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1.pdf. The Superior Court interpreted this phrase as “the equivalent
5
of ‘supporting or opposing one or more candidates.’” Id. Under this
6
interpretation, the phrase “influencing an election” would reach no
7
farther than the phrase “supporting or opposing one or more
8
candidates.” After the district court granted summary judgment in
9
this case, however, the Vermont Supreme Court interpreted the
10
“influencing” language in a manner slightly different than the
11
Vermont Superior Court. Vermont v. Green Mountain Future, 86 A.3d
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981 (Vt. 2013) (“Green Mountain Future”). Although the Vermont
13
Supreme Court agreed with the Superior Court that a narrowing
14
construction was required to address the phrase’s potential
15
vagueness, it determined that the Superior Court had overly
The decision also addressed the language “affecting the outcome of an
election,” which is not contained in the new law and so does not need to be
considered here. See Vt. Stat. Ann. tit. 17, § 2801(4) (repealed 2014).
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narrowed the statute. Id. at 996‐98. The Vermont Supreme Court
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found that the phrase “influencing an election” referred only to the
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“class of advocacy” captured by the phrase “supporting or opposing
4
one or more candidates,” id. at 997, but concluded that the phrase
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covered a broader range of methods than the “supporting or
6
opposing one or more candidates” language. Id. at 997‐98. The
7
Vermont Supreme Court also found the definition of “electioneering
8
communication” not to be overbroad or vague. Id. at 995.
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A Vermont PAC satisfying these definitions is subject to
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numerous requirements under Vermont law. For example, a PAC
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must make all expenditures from a single checking account, file
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campaign finance reports with the Vermont Secretary of State
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identifying each person who contributed more than $100 to the PAC,
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and list all PAC expenditures in certain circumstances. Vt. Stat.
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Ann. tit. 17, §§ 2922(b), 2963, 2964(b)(1). These reports must be filed
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three to four times during an election year. Id. § 2964(b)(1), (c).3
2
Additionally, PACs “shall not accept contributions totaling more
3
than $2,000.00 from a single source, political committee or political
4
party in any two‐year general election cycle.” Vt. Stat. Ann. tit. 17, §
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2805(a).4
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III. District Court Proceedings
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motions for summary judgment by considering VRLC’s vagueness
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challenges to the Vermont statutes. Beginning with the definitions
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of “political committee,” “contribution,” and “expenditure,” the
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district court concluded that the definitions were not vague because
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the phrase “influencing an election” was no broader than the phrase
The district court began its analysis of the parties’ cross
Plaintiffs also note that certain federal requirements apply to groups qualifying
as a “political committee” as defined under federal law. See Appellants’ Br. 44
(citing 2 U.S.C. § 441b). Plaintiffs have not challenged the federal requirements
in this action.
4 The new contribution limitations take effect on January 1, 2015, on which date a
“political committee shall not accept contributions totaling more than: (A)
$4,000.00 from a single source; (B) $4,000.00 from a political committee; or (C)
$4,000.00 from a political party.” Vt. Stat. Ann. tit. 17, § 2941(a)(4).
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“supporting or opposing one or more candidates.” Vt. Right to Life
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Comm., Inc. v. Sorrell, 875 F. Supp. 2d 376, 387‐90 (D. Vt. 2012). In so
3
ruling, the district court noted that the U.S. Supreme Court had
4
rejected a vagueness challenge to similar statutory language. Id. at
5
389 (citing McConnell v. Fed. Election Comm’n, 540 U.S. 93, 140 n.64
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(2003), overruled in part by Citizens United v. Fed. Election Comm’n, 558
7
U.S. 310, 365‐66 (2010)). The district court rejected VRLC’s
8
vagueness challenge to the terms “promotes or supports” and
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“attacks or opposes” in the definition of electioneering
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communications on similar grounds. Id. at 390. The district court
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further rejected the vagueness challenge to the phrase “on whose
12
behalf” because its use elsewhere in related Vermont law made its
13
application “clearly defined.” Id. at 390‐91.
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The district court then considered VRLC’s overbreadth claims.
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Drawing on Buckley v. Valeo, 424 U.S. 1, 79 (1976) (per curiam), and
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subsequent Supreme Court precedent,5 the district court concluded
2
that the Vermont statutes’ lack of explicit reference to a “major
3
purpose” or “express advocacy” test did not make the laws
4
unconstitutionally overbroad. Vt. Right to Life Comm., Inc., 875 F.
5
Supp. 2d at 395‐97.
6
The district court also concluded that the First Amendment
7
challenge to the PAC definition should be reviewed under “exacting
8
scrutiny,” because designation as a “political committee” triggered a
9
disclosure regime. Id. at 392‐93. Applying this standard of review,
10
the district court concluded that the statute did not impose
5
In Buckley, the Supreme Court responded to vagueness and overbreadth
concerns by construing a federal elections statute to reach only “organizations
that are under the control of a candidate or the major purpose of which is the . . .
election of a candidate,” and to reach only express advocacy, as opposed to issue
advocacy. 424 U.S. 1, 79 (1976) (per curiam) (emphasis added). Subsequent
Supreme Court decisions clarified that when Buckley construed the federal
statute to reach express advocacy but exclude issue advocacy, it did not hold
“that a statute that was neither vague nor overbroad would be required to toe
the same express advocacy line.” McConnell v. Fed. Election Comm’n, 540 U.S. 93,
192 (2003), overruled in part by Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
365‐66 (2010). In Citizens United v. Federal Election Commission, the Supreme
Court clarified that disclosure regimes could sweep more broadly than speech
that is the functional equivalent of express advocacy. 558 U.S. at 368‐69.
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impermissible burdens or sweep in a substantial amount of
2
protected speech. Id. at 397. Applying exacting scrutiny to the
3
electioneering communication and mass media activity statutes, the
4
district court reached the same conclusion, finding them
5
appropriately tailored to Vermont’s important interests. Id. at 398‐
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400.
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contributions to PACs. VRLC‐FIPE contended that the law was
9
unconstitutional as applied to it because VRLC‐FIPE did not make
10
contributions to any political campaigns and makes its expenditures
11
independent of any candidate or political campaign.6 The district
The district court then addressed Vermont’s limits on
The district court noted that VRLC‐FIPE was barred from launching a facial
challenge to the statute because of a judgment against it in previous litigation, Vt.
Right to Life Comm., Inc. v. Sorrell, 875 F. Supp. 2d 376, 383 n.5 (D. Vt. 2012), and
VRLC did not join in VRLC‐FIPE’s as‐applied challenge. The district court also
determined that the challenge survived Randall v. Sorrell, 548 U.S. 230 (2006),
because the “Supreme Court did not examine that portion of the law when it
struck down other Vermont contribution limits.” Id. Neither party has
questioned this conclusion, but we note that the Supreme Court “[did] not
believe it possible to sever some of the Act’s [unconstitutional] contribution limit
provisions from others that might remain fully operative.” Randall, 548 U.S. at
262.
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court agreed that the State could not limit contributions to a group
2
that did not coordinate with or make contributions to candidates –
3
that is, a group that only made independent expenditures. The
4
district court noted that “because independent expenditures cannot
5
corrupt, governments have no valid anti‐corruption interest in
6
limiting contributions to independent‐expenditure‐only groups.” Id.
7
at 403. By contrast, groups that made contributions to or
8
coordinated with candidates could be subjected to contribution
9
limits. Id. at 402 (citing Landell, 382 F.3d at 140‐41). The district
10
court went on to reject arguments that applying limits to an
11
independent‐expenditure‐only group would be justified by
12
Vermont’s “unique record of corruption” or by an informational
13
interest in channeling funds into more transparent outlets.7 Id. at
14
403‐04.
In light of McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014), and
“the developing legal framework emerging from other courts,” Vermont has
withdrawn its argument that limits on contributions to independent‐expenditure
groups are constitutionally permitted based on a state interest in transparency.
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The district court concluded, however, that VRLC‐FIPE could
2
not benefit from any protections accorded to independent‐
3
expenditure‐only groups because of its close connection to VRLC‐
4
PC, an arm of VRLC that “contributes funds to candidates.” Id. at
5
404‐410. Based on the undisputed facts before it, the district court
6
concluded “that the structural melding between [VRLC‐FIPE] and
7
[VRLC‐PC] leaves no significant functional divide between them for
8
the purposes of campaign finance law.” Id. at 408. The district court
9
acknowledged that “it is unclear whether even a complete overlap in
10
staff and symmetry in spending permit extending contribution
11
limits that undisputedly apply to a PAC that makes candidate
12
contributions to one that does independent expenditures.” Id. at 409
13
(citing Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 12 (D.C. Cir.
14
2009)). Nevertheless, the unchallenged evidence indicating that
15
VRLC‐FIPE and VRLC‐PC had a “fluidity of funds” made it
Appellees’ Notice of Supplemental Authority Pursuant to Fed. R. App. P. 28(j) 2,
April 14, 2014, ECF No. 199.
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impossible to ensure “that contributions to [VRLC‐FIPE], intended
2
for independent expenditures, are truly aimed at that purpose when
3
spent.” Id. at 409‐10 (internal quotation marks omitted). As a result,
4
the district court rejected VRLC‐FIPE’s as‐applied challenge to
5
Vermont’s limitations on contributions.
LEGAL STANDARDS
6
7
I.
Summary Judgment
8
This Court reviews a summary judgment decision de novo and
9
applies “the same standards that govern the district court’s
10
consideration of the motion.” Kaytor v. Elec. Boat Corp., 609 F.3d 537,
11
546 (2d Cir. 2010).
12
II.
Scope of Review
A.
13
Vagueness
14
We first must clarify the scope of the legal challenge before us.
15
VRLC describes its suit as both a facial and an as‐applied challenge
16
and argues that the “mass media,” “electioneering communication,”
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and “political committee” provisions are unconstitutionally vague
2
facially and as applied. However, it is not the label that matters in
3
deciding what standard applies. Doe v. Reed, 561 U.S. 186, 194
4
(2010). The inquiry is whether “plaintiffs’ claim and the relief that
5
would follow . . . reach beyond the particular circumstances of these
6
plaintiffs.” Id.
7
VRLC has done little, if anything, to present its as‐applied
8
vagueness challenge. See Vt. Right to Life Comm., Inc., 875 F. Supp. 2d
9
at 387 (noting that VRLC “offer[ed] minimal explanation of how the
10
law is unconstitutional as it pertains to the specific communications
11
it either has made or hopes to publish”). The only semblance of an
12
as‐applied challenge on appeal is VRLC’s claim that it wants to
13
publish speech that it fears “promotes, supports, attacks, or
14
opposes” a clearly identified candidate. Appellants’ Br. 24. “But
15
such groups constitute a broad range of entities . . . . The claim
16
therefore seems ‘facial’ in that it is not limited to plaintiff’s particular
21
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case, but challenges application of the law more broadly.” Iowa
2
Right to Life Comm., Inc. v. Tooker, 717 F.3d 576, 588 (8th Cir.
3
2013) (citing Reed, 561 U.S. at 194), cert. denied, 134 S. Ct. 1787 (2014)
4
(internal quotation marks omitted). Moreover, VRLC describes its
5
“as‐applied and facial vagueness challenges” as “largely parallel,”
6
Appellants’ Br. 32, and its request that the provisions be declared
7
unconstitutional and enjoined from enforcement certainly reaches
8
beyond VRLC’s particular circumstances.
9
We recognize the preference for as‐applied challenges, United
10
States v. Farhane, 634 F.3d 127, 138 n.9 (2d Cir. 2011), but where
11
plaintiffs asserting both facial and as‐applied challenges have failed
12
to “[lay] the foundation for an as‐applied challenge,” courts have
13
proceeded to address the facial challenge, Ctr. for Individual Freedom
14
v. Madigan, 697 F.3d 464, 475 (7th Cir. 2012); accord Human Life of
15
Wash. Inc. v. Brumsickle, 624 F.3d 990, 1021‐22 (9th Cir. 2010)
16
(applying facial standard where the plaintiff did “not provide any
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evidence to support an as‐applied challenge” or “distinguish
2
between its facial and as‐applied claims in its briefs”).
3
VRLC has not presented any legal arguments or facts specific
4
to an as‐applied vagueness challenge. We will therefore analyze
5
these claims under the standards governing facial challenges.
6
B.
First Amendment
7
Plaintiffs also argue that Vermont’s political committee, mass
8
media, and electioneering communication definitions and the
9
disclosure regime violate the First Amendment right to free speech
10
“as applied and facially.” In support of the claim that these
11
provisions are “facially unconstitutional,” VRLC relies on cases
12
dealing with overbreadth. Appellants’ Br. 101‐03 (citing United
13
States v. Williams, 553 U.S. 285, 292‐93 (2008); Broadrick v. Oklahoma,
14
413 U.S. 601, 615 (1973)); see also Members of City Council of L.A. v.
15
Taxpayers for Vincent, 466 U.S. 789, 796 (1984) (“There are two quite
16
different ways in which a statute may be considered invalid ‘on its
23
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face’ – either because it is unconstitutional in every conceivable
2
application, or because it seeks to prohibit such a broad range of
3
protected conduct that it is unconstitutionally ‘overbroad.’”).8
4
5
identical. VRLC contends that Vermont’s PAC disclosure
6
requirements are overbroad – and therefore facially unconstitutional
7
– because, according to VRLC, Vermont may only impose a
8
disclosure regime on an organization if the organization’s “major
9
purpose” is to advance a candidacy. VRLC additionally argues that
10
Vermont’s “electioneering communication” and “mass media”
11
disclosure and identification requirements are overbroad because,
12
according to VRLC, Vermont cannot impose a disclosure or
13
identification requirement on speech unless that speech is “express
VRLC’s facial and as‐applied challenges are substantively
8
“A law is unconstitutionally overbroad if it punishes a substantial amount of
protected free speech, judged in relation to its plainly legitimate sweep.” United
States v. Farhane, 634 F.3d 127, 136 (2d Cir. 2011) (internal quotation marks and
alteration omitted). An overbroad law can never be validly enforced unless a
limiting construction is available. Id. As a result, a party may challenge a law as
being overbroad even if a narrower law might have validly prohibited her
conduct.
24
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advocacy” or broadcast speech that is run shortly before an election
2
and targeted at the relevant electorate. VRLC simultaneously asserts
3
that these provisions are unconstitutional as applied to it because
4
the organization does not have the major purpose to advance a
5
candidacy and does not engage in express advocacy.
6
Because the merits of VRLC’s arguments do not depend on
7
whether they have been raised as part of an as‐applied or facial
8
overbreadth challenge, we consider both claims together. VRLC‐
9
FIPE has separately brought an as‐applied challenge against
10
Vermont’s contribution limits, which will be addressed separately.
25
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“ELECTIONEERING COMMUNICATIONS” AND “MASS
MEDIA ACTIVITIES”
1
2
3
4
5
provisions concerning electioneering communications and mass
6
media activities (i) violate the Fourteenth Amendment’s due process
7
guarantee due to vagueness, and (ii) violate the First Amendment’s
8
free speech guarantee. Like the district court, we conclude that the
9
provisions are constitutional.
10
I.
VRLC contends that the Vermont statutory disclosure
Vagueness
11
The due process clauses of the Fifth and Fourteenth
12
Amendments forbid enforcement of a statute if “the statute . . . fails
13
to provide a person of ordinary intelligence fair notice of what is
14
prohibited, or is so standardless that it authorizes or encourages
15
seriously discriminatory enforcement.” Holder v. Humanitarian Law
16
Project, 561 U.S. 1, 18 (2010) (internal quotation marks omitted).
17
Although this standard is applied more stringently where the rights
18
of free speech or free association are implicated, “perfect clarity and
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precise guidance have never been required even of regulations that
2
restrict expressive activity.” Id. at 19 (internal quotation marks
3
omitted). A facial vagueness challenge will succeed only when the
4
challenged law can never be validly applied. Vill. of Hoffman Estates
5
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).
A.
6
“Promotes or Supports . . . or Attacks or Opposes”
7
The “electioneering communication” definition, which
8
triggers disclosure requirements, uses the words “promotes,”
9
“supports,” “attacks,” and “opposes.” Vt. Stat. Ann. tit. 17, §
10
2901(6). VRLC contends that these terms are impermissibly vague.
11
We disagree; this language is sufficiently precise.
12
13
are not unconstitutionally vague in a similar context, because they
14
“clearly set forth the confines within which potential party speakers
15
must act in order to avoid triggering the provision.” 540 U.S. at 170
16
n.64.
In McConnell, the Supreme Court explained that these terms
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The McConnell Court included an additional basis for its
2
conclusion, the nature of the speaker being regulated: “This is
3
particularly the case here, since actions taken by political parties are
4
presumed to be in connection with election campaigns.” Id. A
5
communication that refers to a “clearly identified candidate for
6
office” is also presumably made in connection with election
7
campaigns. Thus, McConnell applies with equal force here: the
8
Vermont definition of “electioneering communication” requires a
9
reference to a clearly identified candidate, and a communication
10
referring to a clearly identified candidate is presumed to be in
11
connection with an election campaign.9 Also, the language of
12
McConnell indicates that the result did not depend on the
13
presumption. Indeed, the First Circuit has applied McConnell to
14
hold that use of the terms “promote,” “support,” and “oppose” was
15
not unconstitutionally vague without apparent reference to the
This does not apply to the “support” or “oppose” language in the PAC
definition, discussed below.
9
28
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additional reasons of McConnell. Nat’l Org. for Marriage v. McKee,
2
649 F.3d 34, 63‐64 (1st Cir. 2011).
3
4
which he described the issue of whether an advertisement
5
“promotes, attacks, supports, or opposes the named candidate,” as
6
“inherently vague,” asking, “Does attacking the king’s position
7
attack the king?” Fed. Election Comm’n v. Wisc. Right to Life, Inc., 551
8
U.S. 449, 493 (2007) (Scalia, J., concurring). But the controlling
9
opinion rejected Justice Scalia’s concerns. Id. at 474 n.7. Nor does
10
the electioneering communication definition here include the term
11
“influence,” which other courts have found requires a limiting
12
construction to avoid impermissible vagueness. See, e.g., Ctr. for
13
Individual Freedom v. Carmouche, 449 F.3d 655, 664 (5th Cir. 2006), cert.
14
denied, 549 U.S. 1112 (2007); N.C. Right to Life, Inc. v. Bartlett, 168 F.3d
15
705, 712‐13 (4th Cir. 1999), cert. denied, 528 U.S. 1153 (2000).
VRLC points to a concurring opinion by Justice Scalia in
29
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B.
“On Behalf Of”
2
Electioneering communications “paid for by or on behalf of a
3
political committee or political party” must also identify certain
4
contributors. Vt. Stat. Ann. tit. 17, § 2972(c) (emphasis added).
5
VRLC urges that the phrase “on behalf of” is unconstitutionally
6
vague. It is not.
7
8
considered by the district court below – required that electioneering
9
communications identify “the name of the candidate, party, or
10
political committee by or on whose behalf the same is published or
11
broadcast.” Vt. Stat. Ann. tit. 17, § 2892 (repealed 2014). The district
12
court rejected Plaintiffs’ vagueness challenge to the phrase “on
13
whose behalf” in the previous electioneering communication
14
reporting provision, concluding that the phrase “contemplates an
15
agreement between the sponsor and the beneficiary to run the
16
communication.” Vt. Right to Life Comm., Inc., 875 F. Supp. 2d at 390.
Vermont’s previous campaign finance law – and the law
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The
current
law
now
requires
2
communication paid for by or on behalf of a political committee or
3
political party shall contain the name of” certain contributors. Vt.
4
Stat. Ann. tit. 17, § 2972(c) (emphasis added). “On behalf of” now
5
clearly modifies “paid for.” The most natural reading of “on behalf
6
of” in the context of this provision, then, is the passing of money
7
through a third party such that the advocacy is “paid for” by a third
8
party who was hired by the PAC to place the electioneering
9
communication. See Farhane, 634 F.3d at 142 (“[W]e do not look at
10
statutory language in isolation to determine if it provides adequate
11
notice of conduct proscribed or permitted. Rather, we consider
12
language in context.”). Such ads would still be paid for “on behalf
13
of” the PAC and regulated by Vermont’s electioneering
14
communication identification requirements. So construed, the
15
provision is clear and not impermissibly vague.
31
that
“an
electioneering
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C.
“Expenditure”
2
VRLC contends that the definition of the statutory term
3
“expenditure” is unconstitutionally vague. “Expenditure” is used in
4
the mass media activity statute.10 As noted above, “expenditure” is
5
defined as “a payment, disbursement, distribution, advance,
6
deposit, loan, or gift of money or anything of value, paid or
7
promised to be paid, for the purpose of influencing an election,
8
advocating a position on a public question, or supporting or opposing
9
one or more candidates.” Vt. Stat. Ann. tit. 17, § 2901(7) (emphases
10
added). VRLC challenges both italicized phrases. As discussed
11
above, the Supreme Court has held that “supporting” and
12
“opposing” are not unconstitutionally vague. McConnell, 540 U.S. at
13
170 n.64 (concluding that the words promote, support, attack, and
14
oppose are not unconstitutionally vague).
VRLC also asserts that the PAC definition is vague where it too uses the term
“expenditure.” This challenge will be dealt with below when addressing the
constitutional challenges to Vermont’s PAC definition.
10
32
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2
supplied a narrowing interpretation to the phrase “influencing an
3
election” in the “political committee” definition. As that court
4
explained, the “influencing” phrase “refer[s] only to [the] class of
5
advocacy” covered by the phrase “supporting or opposing”: “they
6
both refer to advocacy to vote in a particular way in an election.”
7
Green Mountain Future, 86 A.3d at 997. The term “influencing”
8
simply embraces a broader set of methods (i.e., not only where the
9
identification of the candidate is explicit, but also where absent such
10
reference, it is nonetheless clear to the objective observer that the
11
purpose of an advertisement is to persuade voters to vote yes or no
12
on a candidate). Id. at 997‐98. The Vermont Supreme Court
13
explained that:
14
15
16
17
18
19
As also mentioned above, the Vermont Supreme Court has
The purpose of the methods used by
[Green Mountain Future] in this case was
very clear, partially because [Green
Mountain Future] identified the candidate
by name and included his pictures in the
advertisements. If in the next case,
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however,
an
organization
ran
advertisements in the same way and in the
same timeframe with respect to an election
without mentioning the candidate’s name,
and without including a picture of the
candidate, we would be reluctant to hold
that the statute as narrowed by the trial
court could cover this method—even if an
objective observer would find the purpose
to be the same as when the candidate name
and picture was used. As in this case, the
objective observer should look to multiple
factors: for example, the timing of the
advertisement, the images used in the
advertisement,
the
tone
of
the
advertisement, the audience to which the
advertisement is targeted, and the
prominence of the issue(s) discussed in the
advertisement in the campaign. But where
the objective observer concludes that the
purpose of an advertisement is to influence
voters to vote yes or no on a candidate, the
“influencing an election” language should
apply. Other than in this circumstance, we
agree with the trial court’s narrowing
construction.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. at 998 (footnote omitted). In other words, if an organization ran
29
an advertisement “for the objective purpose of persuading
30
someone” to vote for or against a candidate, but the advertisement
34
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did not identify a candidate in that election, it could still fall within
2
Vermont’s definition of “influencing an election.” Id. at 998.
3
4
Supreme Court’s Green Mountain Future decision has no impact here.
5
A communication only qualifies as a mass media activity if it
6
“includes the name or likeness of a clearly identified candidate.” Vt.
7
Stat. Ann. tit. 17, § 2901(11) (emphasis added). If a communication
8
does not qualify as a mass media activity, it does not trigger the
9
disclosure statute in which the term “expenditure” is used. See Vt.
10
Stat. Ann. tit. 17, § 2971(a)(1) (“[A] person who makes expenditures
11
for any one mass media activity totaling $500.00 or more . . . within 45
12
days before a primary, general, county, or local election shall, for
13
each activity, file a mass media report.” (emphases added)). As a
14
result, the “influencing” language in the expenditure definition has
15
no force in this context. Because the “supporting or opposing”
16
language in the statutory definition of “expenditure” is not vague
The expansion of the “influencing” language in the Vermont
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and the “influencing” language in its definition has no relevance to
2
the mass media activity statute, we reject VRLC’s vagueness
3
challenge to the term “expenditure” as it is used in the mass media
4
activity statute.
5
II.
First Amendment
6
A.
7
VRLC contends that Vermont cannot impose a disclosure or
8
identification requirement on speech unless that speech is “express
9
advocacy” or broadcast speech that is run shortly before an election
10
and targeted at the relevant electorate. Because Vermont’s
11
definitions of regulated “electioneering communications” and “mass
12
media activities” apply to speech that falls outside of these
13
categories, VRLC contends that they violate the First Amendment.
14
Although VRLC’s position finds some support in pre‐Citizens United
15
decisions, it cannot be squared with Citizens United.
Express Advocacy
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In Buckley, the Supreme Court responded to vagueness and
2
overbreadth challenges by adopting a narrow construction of the
3
term “political committee” in the Federal Election Campaign Act,
4
which required “political committees” and other persons to disclose
5
their “expenditures.” 424 U.S. at 80. Specifically, the Supreme
6
Court interpreted “political committee” to “only encompass
7
organizations that are under the control of a candidate or the major
8
purpose of which is the nomination or election of a candidate” and
9
reasoned that the “[e]xpenditures of candidates and of ‘political
10
committees’ so construed can be assumed to fall within the core area
11
sought to be addressed by Congress.” Id. at 79 (emphasis added).
12
The Supreme Court further explained that “when the maker of the
13
expenditure is . . . an individual other than a candidate or a group
14
other than a ‘political committee,’” the term “expenditure” should
15
“reach only funds used for communications that expressly advocate
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the election or defeat of a clearly identified candidate.” Id. at 79‐80
2
(emphasis added).11
3
4
context of constitutional vagueness and overbreadth challenges,
5
subsequent Supreme Court decisions suggest that the limits the
6
Court imposed on the statute were not coextensive with
Although Buckley’s narrowing construction arose in the
In VRLC I, this Court relied on Buckley’s distinction between express and issue
advocacy to hold that a previous version of the Vermont disclosure statute was
“unconstitutional on its face. The section apparently requires reporting of
expenditures on radio or television advertisements devoted to pure issue
advocacy in violation of the clear command of Buckley.” 221 F.3d at 389 (footnote
omitted). As described in the text, McConnell did not read Buckley as suggesting
“that a statute that was neither vague nor overbroad would be required to toe
the same express advocacy line.” 540 U.S. at 192. As a result, it is unclear
whether VRLC I’s holding that “pure issue advocacy” cannot be the subject of a
valid governmental regulation remains viable. See Minn. Citizens Concerned for
Life, Inc. v. Kelley, 427 F.3d 1106, 1111 (8th Cir. 2005) (noting that challenger’s
position found support in VRLC I, but rejecting challenger’s position because the
“court must follow the latest pronouncement of the Supreme Court,” which had
become McConnell). In any event, as described in the text, the Citizens United
Court clarified that disclosure requirements can sweep more broadly than
“express advocacy.” Even if it were not affected by Citizens United, VRLC I does
not apply here, as Vermont’s more recent statute does not reach pure issue
advocacy. Speech does not qualify as an “electioneering communication” unless
it refers to a “clearly identified candidate,” and “promotes,” “supports,”
“attacks,” or “opposes” a candidate. Vt. Stat. Ann. tit. 17, § 2901(6). And the
mass media activity reporting requirement is not triggered absent an
“expenditure” (which requires a purpose of “supporting or opposing one or
more candidates”) and “mass media activity” (which requires a “clearly
identified candidate”). Id. § 2971(a)(1), (b).
11
38
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constitutional limits. See McConnell, 540 U.S. at 191‐92 (“[A] plain
2
reading of Buckley makes clear that the express advocacy limitation .
3
. . was the product of statutory interpretation rather than a
4
constitutional command.”). For instance, the McConnell Court
5
concluded, without indicating that the First Amendment would
6
prohibit further disclosure requirements, that the government could
7
regulate broadcast speech clearly identifying a candidate that is
8
aired in a specific time period and targeted at the relevant electorate.
9
Id. at 194. The Supreme Court explained that it was not drawing “a
10
constitutional boundary that forever fixed the permissible scope of
11
provisions regulating campaign‐related speech.” Id. at 192‐93.
12
13
the reach of constitutional limitations in this context. In Citizens
14
United, the Supreme Court expressly rejected the “contention that
15
the disclosure requirements must be limited to speech that is the
16
functional equivalent of express advocacy,” because disclosure is a
Citizens United removed any lingering uncertainty concerning
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less restrictive strategy for deterring corruption and informing the
2
electorate. 558 U.S. at 369; accord Buckley, 424 U.S. at 66‐68.12 The
3
Court explained that even if Citizens United’s “ads only pertain to a
4
commercial transaction,” the government could constitutionally
5
require identification and disclosure with respect to the
6
advertisements because “the public has an interest in knowing who
7
is speaking about a candidate shortly before an election.” Id.
8
9
advocacy does not render them unconstitutional.
As a result, the Vermont statutes’ extension beyond express
10
B.
Standard of Review
11
Although the Vermont statutes’ reach beyond express
12
advocacy does not render them unconstitutional, the statutes remain
The Seventh Circuit has recently interpreted this portion of Citizens United as
confined to its “specific and narrow context.” Wis. Right to Life, Inc. v. Barland,
No. 12‐2915, 2014 WL 1929619, at *29‐33 (7th Cir. May 14, 2014). We disagree.
There is no indication that the Citizens United ruling depended on the type of
disclosure requirements it upheld, and the Court specifically referred to three
other instances where disclosure requirements were upheld. Citizens United, 558
U.S. at 369 (citing Buckley, 424 U.S. at 75‐76; McConnell, 540 U.S. at 321; and
United States v. Harriss, 347 U.S. 612, 625 (1954)).
12
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subject to “exacting scrutiny,” which “requires a substantial relation
2
between the disclosure requirement and a sufficiently important
3
governmental interest.” Id. at 366‐67 (internal quotation marks
4
omitted). A governmental interest in “providing the electorate with
5
information about the sources of election‐related spending” may
6
justify disclosure requirements. Id. at 367 (internal quotation marks
7
and brackets omitted). Applying exacting scrutiny, the Supreme
8
Court has upheld a federal statutory provision that required
9
“televised electioneering communications funded by anyone other
10
than a candidate” to include an identification statement stating “that
11
‘________ is responsible for the content of this advertising.’” Id. at
12
366‐71. 13
In a decision that predated Citizens United, the Second Circuit stated that
“[m]andatory disclosure requirements may represent a greater intrusion into the
exercise of First Amendment rights of freedom of speech and association than do
reporting provisions . . . .” VRLC I, 221 F.3d at 387 (citing McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 355 (1995)). This view now appears inconsistent
with Citizens United.
13
41
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Review of the monetary threshold for requiring disclosure of a
2
contribution or expenditure is highly deferential. In Buckley, the
3
Supreme Court suggested that a disclosure threshold will be upheld
4
unless it is “wholly without rationality,” specifically stating that it
5
would not require the legislature “to establish that it has chosen the
6
highest reasonable threshold.” 424 U.S. at 83.
7
C.
8
The electioneering communication and mass media activity
9
statutes are within the scope of regulation permitted under Citizens
10
United. An electioneering communication, which under section
11
2972(2) must identify the speaker, includes any “communication that
12
refers to a clearly identified candidate for office and that promotes
13
or supports a candidate for that office or attacks or opposes a
14
candidate for that office, regardless of whether the communication
15
expressly advocates a vote for or against a candidate . . . .” Vt. Stat.
16
Ann. tit. 17, § 2901(6). This definition by its terms only reaches
Application
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communications that take a position on an actual candidacy. Also,
2
although the provision is not explicitly time limited, an individual
3
can only be a “candidate” within the meaning of the statute once she
4
has taken an “affirmative action” to become a candidate for office by
5
accepting $500 of contributions, making $500 of expenditures, filing
6
a petition for nomination, being nominated, or announcing her
7
candidacy. Id. § 2901(1). Thus, the statute will only apply during a
8
campaign for public office. As a result, the electioneering
9
communication reporting requirements have a substantial relation
10
to the public’s “interest in knowing who is speaking about a
11
candidate shortly before an election.” Citizen’s United, 558 U.S. at
12
369; see also Act of Jan. 23, 2014, 2014 Vt. Acts & Resolves No. 90, Sec.
13
1(15) (“Increasing identification information in electioneering
14
communications will enable the electorate to evaluate immediately
15
the speaker’s message and will bolster the sufficiently important
43
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interest in permitting Vermonters to learn the sources of significant
2
influence in our State’s elections.”).
3
Admittedly, the mass media reporting requirements, because
4
they do not directly inform the public about the identity of the
5
speaker, are less tailored to the asserted public interest in
6
information about the sources of election‐related spending than an
7
identification requirement. But notwithstanding this less direct
8
nexus, the requirement is still substantially related to a permissible
9
informational interest. The mass media provision is explicitly
10
limited in time and scope: (a) a mass media activity will only trigger
11
the reporting requirement if it occurs “within 45 days before a
12
primary, general, county, or local election,” Vt. Stat. Ann. tit. 17, §
13
2971(a)(1); (b) a communication only qualifies as a mass media
14
activity if it includes “the name or likeness of a clearly identified
15
candidate for office,” id. § 2901(11); and (c) a report is only required
16
when “expenditures” (which, under section 2901(7), must have the
44
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“purpose of influencing an election, advocating a position on a
2
public question, or supporting or opposing a candidate”) “for any
3
one mass media activity total[] $500.00 or more,” id. § 2971(a)(1).
4
These targeted mass media disclosure requirements are
5
substantially related to a sufficiently important governmental
6
interest. By alerting candidates whose image or name is used, the
7
reporting requirement will identify the source of election‐related
8
information and encourage candidate response. And by requiring
9
that the speaker notify the candidate whose image or name was
10
used, the provision brings so‐called “whisper campaigns” into the
11
sunlight14 and also helps ensure that candidates are aware of and
12
have an opportunity to take a position on the arguments being made
As an example of so‐called “whisper campaigns,” there have been (still
unproven) accusations that during the Republican presidential primary race in
2000, groups supporting a candidate arranged for mass phone calls that strongly
suggested that John McCain had an illegitimate child. See Richard Gooding, The
Trashing of John McCain, VANITY FAIR, Nov. 2004, available at
http://www.vanityfair.com/politics/features/2004/11/mccain200411. If such
conduct occurred in Vermont, the group that arranged the phone calls would be
required to report it to the candidate being attacked. This would allow the
candidate to more quickly and effectively respond.
14
45
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in their name. This public benefit is in line with the informational
2
interest approved by Citizens United. The requirement that such
3
reports be filed within twenty‐four hours of the communication is
4
also directly related to the State’s informational interest given the
5
need to rapidly address election‐related speech in the final weeks of
6
a campaign.
7
8
communications and mass media activities survive exacting
9
scrutiny.
As a result, the Vermont statutes governing electioneering
46
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“POLITICAL COMMITTEE” DEFINITION AND DISCLOSURE
REQUIREMENTS
1
2
3
4
VRLC contends that the Vermont “political committee”
5
definition (i) violates the Fourteenth Amendment’s due process
6
guarantee because of vagueness, and (ii) violates the First
7
Amendment’s free speech guarantee. Like the district court, we
8
conclude that the statute is constitutional.
9
I.
Vagueness
10
As noted above, VRLC asserts that the phrases “supporting or
11
opposing” and “influencing an election” are unconstitutionally
12
vague as used in the PAC definition. These phrases are either
13
directly incorporated into the definition of “political committee” or
14
are indirectly incorporated, through the definitions of “contribution”
15
or “expenditure.” As explained above, the phrase “supporting or
16
opposing” is not unconstitutionally vague. See McConnell, 540 U.S.
17
at 170 n.64.
47
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Also explained above, a Vermont Superior Court has
2
interpreted the phrase “influencing an election” such that it is co‐
3
extensive with the “supporting or opposing” language. Green
4
Mountain Future, Civ. Div. No. 758‐10‐10 Wncv, slip op. at 12 (Wash.
5
Super. Ct. June 28, 2011). We acknowledge that the narrowing
6
construction provided by the Vermont Superior Court and relied on
7
by Judge Sessions differs from the narrowing construction more
8
recently provided by the Vermont Supreme Court. This difference,
9
however, does not change the result. The Vermont Supreme Court
10
merely broadened the Superior Court’s interpretation in the sense
11
that it read “influence an election” to also embrace communications
12
that do not identify a specific candidate. Green Mountain Future, 86
13
A.3d at 997‐98. The Vermont Supreme Court explained that the
14
“influencing” phrase still “refer[s] only to [the] class of advocacy”
15
covered by the phrase “supporting or opposing.” Id. at 997.
48
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The fact that “influencing an election” covers communications
2
that do not necessarily identify a specific candidate does not make
3
the phrase unconstitutionally vague. In McConnell, 540 U.S at 184,
4
the U.S. Supreme Court upheld against a vagueness challenge a
5
definition of “Federal election activity” that included:
6
7
8
9
10
11
12
13
14
15
16
17
a public communication that refers to a
clearly identified candidate for Federal
office (regardless of whether a candidate
for State or local office is also mentioned or
identified) and that promotes or supports a
candidate for that office, or attacks or
opposes a candidate for that office
(regardless of whether the communication
expressly advocates a vote for or against a
candidate).
2 U.S.C. § 431(20)(A)(iii). Despite the statute’s explicit application
18
beyond express advocacy, the Supreme Court held that it was not
19
unconstitutionally vague. McConnell, 540 U.S. at 170 n.64.
20
Vermont’s use of “influencing” only describes speech that the
21
federal statute captures with the terms “promotes,” “supports,”
22
“attacks,” and “opposes.” Because the phrase “influencing” in the
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Vermont statute is coextensive with the federal statute, Vermont’s
2
statute is also not unconstitutionally vague.
3
II.
First Amendment
4
A.
5
As noted above, VRLC contends that Vermont’s PAC
6
disclosure requirements violate the First Amendment, arguing that
7
Vermont may only impose a disclosure regime on an organization if
8
“the major purpose” of the organization is to advance a candidacy.
9
“Major Purpose”
Prior to Citizens United, the Fourth Circuit held that an
10
organization could only be subjected to a political committee
11
regulatory regime if the organization met “the major purpose” test.
12
N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir.
13
2008) (“NCRL III”). However, since Citizens United and its approval
14
of extensive disclosure regimes, two Circuits have concluded that
15
the major purpose test is not a constitutional requirement. See Ctr.
16
for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012)
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(“[T]he line‐drawing concerns that led the [Supreme] Court to adopt
2
the major purpose limitation for contribution and expenditure limits
3
in Buckley do not control our overbreadth analysis of the disclosure
4
requirements . . . .”);15 Nat’l Org. for Marriage v. McKee, 649 F.3d 34,
5
59 (1st Cir. 2011) (“We find no reason to believe that this so called
6
‘major purpose’ test, like the other narrowing constructions adopted
7
in Buckley, is anything more than an artifact of the Court’s
8
construction of a federal statute.”); see also Human Life of Wash., Inc.,
9
624 F.3d at 1009‐11 (concluding that Buckley did not lay down a
10
bright‐line test requiring that the major purpose of an organization
11
must be to support or oppose a candidate, and that a state law
The Seventh Circuit has since distinguished Center for Individual Freedom v.
Madigan by applying the “major purpose” limitation to narrow a campaign
finance regulation it found would otherwise violate the First Amendment.
Barland, 2014 WL 1929619, at *33, 36‐37. Although Barland seems to accept that
the major purpose limitation is not a “constitutional command,” it asserts that
the limitation remains an “important check” to determine whether a disclosure
rule is closely tailored to the public’s information interest. Id. at *36 (internal
quotation marks omitted). We believe it is unnecessary here to resort to a major
purpose limitation to hold that the disclosure regime satisfies exacting scrutiny.
15
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regulating organizations with a major purpose of engaging in such
2
actions was constitutional).
3
4
this context after Citizens United and hold that the Constitution does
5
not require disclosure regulatory statutes to be limited to groups
6
having “the major purpose” of nominating or electing a candidate.
7
The “express advocacy” analysis above applies with equal force to
8
“the major purpose” analysis here. When the Buckley Court
9
construed the relevant federal statute to reach only groups having
10
“the major purpose” of electing a candidate, it was drawing a
11
statutory line. See McConnell, 540 U.S. at 191‐93. It was not holding
12
that the Constitution forbade any regulations from going further. Id.
13
B.
14
Although Vermont’s PAC statutes are not rendered
15
unconstitutional because they reach beyond organizations having
16
the “major purpose” of nominating or electing a candidate, they
We join the Circuits that have considered PAC definitions in
Standard of Review
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remain subject to the appropriate degree of constitutional scrutiny.
2
VRLC argues that “[s]trict scrutiny applies to government’s defining
3
an organization as a political committee – or whatever label a
4
jurisdiction uses – and thereby imposing political‐committee
5
burdens.” Appellants’ Br. 45. In essence, VRLC asks this Court to
6
aggregate the various statutory provisions that apply to a Vermont
7
“political committee,” decide that these provisions add up to an
8
“onerous burden,” and conclude from this that the definition of a
9
Vermont political committee must be evaluated using strict scrutiny.
10
11
12
13
14
15
16
17
18
19
20
21
But as the Fourth Circuit has recently explained:
[The Citizens United] Court used the word
“onerous” in describing certain PAC‐style
obligations and restrictions [but] . . . . the
Court distinguished its application of the
strict scrutiny standard to expenditure
restrictions from the exacting scrutiny
standard
applicable
to
disclosure
requirement provisions . . . . In sum, we
conclude that even after Citizens United, it
remains the law that provisions imposing
disclosure obligations are reviewed under
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2
3
4
the intermediate scrutiny level of “exacting
scrutiny.”
The Real Truth About Abortion, Inc. v. Fed. Election Comm’n, 681 F.3d
5
544, 549 (4th Cir. 2012), cert. denied, 133 S. Ct. 841 (2013); accord Wis.
6
Right to Life, Inc. v. Barland, No. 12‐2915, 2014 WL 1929619, at *33 (7th
7
Cir. May 14, 2014) (applying exacting scrutiny to review rule that
8
imposed “PAC‐like disclosure program” on “independent
9
disbursement organizations”); Free Speech v. Fed. Election Comm’n,
10
720 F.3d 788, 792‐93 (10th Cir. 2013), cert. denied, 2014 WL 2011565
11
(May 19, 2014); Human Life of Wash. Inc., 624 F.3d at 1012‐13.
12
Vermont’s definition of “political committee,” which is then
13
used to impose disclosure obligations, does not require strict
14
scrutiny review. A defined term such as “political committee” is
15
simply a useful drafting tool. The definition sets out the domain of a
16
series of separate statutory provisions. For example, the statute
17
currently defines “political committee” in section 2901(13), then
18
subjects every “political committee” to disclosure requirements in
54
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section 2964. The statute could be rewritten to dispense with the
2
defined term “political committee” by making the disclosure
3
requirements a standalone provision. The same process could be
4
followed with every other provision, including the contribution
5
limitations in section 2941(a)(4). This process would not alter the
6
substance of the statute, and the resulting statute likely would be
7
unwieldy; it would be more difficult to apply and review. But it
8
would lack a “political committee” definition that could be subjected
9
to the type of challenge envisioned by VRLC.
10
It is the challenged regulation, not the PAC definition,
11
therefore, that determines what level of scrutiny should apply.
12
VRLC highlights the following obligations that apply to an
13
organization once it is defined as a political committee: registration,
14
recordkeeping necessary for reporting, and reporting requirements.
15
It asserts these “are the very burdens that are ‘onerous’ as a matter
16
of law.” Appellants’ Br. 43. These requirements amount to the
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establishment of a disclosure regime. As a result, we, like the
2
district court, apply exacting scrutiny to the “political committee”
3
definition as used to impose the registration and disclosure
4
requirements here.16 Vt. Right to Life Comm., Inc., 875 F. Supp. 2d. at
5
393; see also Yamada v. Weaver, 872 F. Supp. 2d 1023, 1048 (D. Haw.
6
2012) (collecting cases that “analyzed various definitions of ‘political
7
committee,’ which include the burdens associated with such
8
classification, and considered them to be ‘disclosure requirements’”).
C.
9
Application
10
Judge Sessions correctly found that Vermont’s PAC definition,
11
in the context of disclosure requirements, survives exacting scrutiny.
12
Vt. Right to Life Comm., Inc., 875 F. Supp. 2d at 396‐97. Vermont’s
13
regime only calls for disclosures of “contributions” and
16
Although there may be an open question as to what level of scrutiny should
apply where the political committee definition is used to impose the burden of
contribution limits, we, like the district court, do not find a need to reach that
question here. VRLC has not challenged the contribution limits and expressly
stated in its brief that such limits were “immaterial” for the purpose of its
challenge to the political committee definition.
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“expenditures,” both of which are defined terms that require a
2
purpose to promote or oppose a candidacy. Vt. Stat. Ann. tit. 17, §
3
2901(4), (7). In other words, Vermont PACs need only disclose
4
transactions that have the purpose of supporting or opposing a
5
candidate.17 The disclosure regime is substantially related to the
6
recognized governmental interest in “providing the electorate with
7
information about the sources of election‐related spending.” Citizens
8
United, 558 U.S. at 367 (internal quotation marks omitted).
9
The definition also reaches groups only once they have
10
accepted contributions of $1,000 or more and made expenditures of
11
$1,000 or more in any two‐year general election cycle for the
12
purpose of supporting or opposing one or more candidates. See Vt.
13
Stat. Ann. tit. 17, § 2901(13). This is different from the Wisconsin
14
regulation struck down by the Seventh Circuit that imposed a
15
disclosure regime on “every independent group that crosses the very
The statutory scheme only asks for information that PACs would track even
absent a legal requirement. A contributor database is a valuable asset for a PAC,
and few organizations would fail to maintain an accounting of its expenditures.
17
57
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low $300 threshold in express‐advocacy spending.” Barland, 2014
2
WL 1929619, at *35 (emphasis in original). The Seventh Circuit itself
3
relied on regulatory differences to distinguish Barland from its
4
earlier decision to uphold Illinois’ disclosure system because that
5
political committee definition covered “only groups that accept
6
contribution or make expenditures ‘on behalf of or in opposition to’
7
a candidate or ballot initiative.” Id. at *33 (quoting Madigan, 697 F.3d
8
at 488). Factual distinctions aside, we find the Seventh Circuit’s
9
reasoning in Center of Individual Freedom v. Madigan the more
10
persuasive: “[O]ur inquiry depends on whether there is a substantial
11
relation between [Vermont’s] interest in informing its electorate
12
about who is speaking before an election and [its] regulation of
13
campaign‐related spending by groups whose major purpose is not
14
electoral politics. We find that there is.” 697 F.3d at 491 (emphasis
15
in original).
58
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Moreover, Vermont’s PAC definition is limited to
2
organizations that make expenditures and receive contributions. Vt.
3
Stat. Ann. tit. 17, § 2901(13). This definition has a substantial relation
4
to Vermont’s legitimate informational interests. Defining PACs as
5
entities that receive contributions and then imposing disclosure
6
requirements simply addresses the situation where, for example, a
7
corporation creates an entity with an opaque name – say,
8
“Americans for Responsible Solutions” – contributes money to that
9
entity, and has that entity engage in speech on its behalf. By
10
requiring that entity to meet reporting and organizational
11
requirements, Vermont can ensure that the underlying speaker is
12
revealed. If the same corporation wishes to engage in independent
13
expenditures, however, it is free to do so without limitation and
14
without falling under the PAC definition and disclosure
15
requirements as long as it does not receive contributions.
59
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Vermont’s tailored disclosure regime is distinguishable from
2
the perpetual reporting and organizational requirements that raised
3
concern for the Eighth Circuit. See Minn. Citizens Concerned for Life,
4
Inc. v. Swanson, 692 F.3d 864, 867‐69, 872‐73 (8th Cir. 2012) (en banc)
5
(addressing Minnesota statute that required any association seeking
6
to engage in independent expenditures to set up a PAC). The Eighth
7
Circuit expressed doubt over Minnesota’s reporting requirements,
8
which were “untethered from continued speech.” Id. at 876.
9
Similarly, in Iowa Right to Life Committee, Inc. v. Tooker, the Eighth
10
Circuit rejected an Iowa statute on the basis of its requirement that
11
groups “file perpetual, ongoing reports.” 717 F.3d 576, 597 (8th Cir.
12
2013), cert. denied, 134 S. Ct. 1787 (2014). By contrast, the Vermont
13
statute at issue only considers a group a “political committee” and
14
subjects it to reporting requirements if it receives contributions and
15
makes expenditures of $1,000 or more in a two‐year general election
16
cycle. Vt. Stat. Ann. tit. 17, § 2901(13). The reporting requirement,
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therefore, is not “perpetual”; it is contingent upon qualifying as a
2
PAC based on a group’s ongoing contributions and expenditures. In
3
addition, the Vermont statute recognizes the ability of a PAC to file a
4
“final report” that lists all of its contributions and expenditures and
5
terminates its campaign activities. Id. § 2965(b).
6
7
reporting a contribution, see id. § 2963(a)(1), is too low. In Buckley,
8
the Supreme Court upheld a disclosure threshold after observing
9
that it was not “wholly without rationality.” 424 U.S. at 83. The
10
Ninth Circuit has applied a “wholly without rationality” standard in
11
evaluating a disclosure threshold, although it evaluated the overall
12
scheme using an “exacting scrutiny” standard. Canyon Ferry Rd.
13
Baptist Church of E. Helena, Inc. v. Unsworth, 556 F.3d 1021, 1031,
14
1033‐34 (9th Cir. 2009).18 Regardless of the applicable standard, the
VRLC‐FIPE also contends that the $100 threshold for
Although VRLC‐FIPE contends that the Fourth Circuit has applied a more
stringent test to a disclosure threshold, it is not clear whether the Fourth Circuit
was inquiring into the actual dollar value that would trigger a report. N.C. Right
18
61
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threshold is not so low as to prompt any real constitutional doubt.
2
See Nat’l Org. for Marriage v. McKee, 669 F.3d 34, 40‐41 (1st Cir. 2012)
3
(upholding $100 threshold); Family PAC v. McKenna, 685 F.3d 800,
4
809 n.7 (9th Cir. 2012) (approving disclosure requirements triggered
5
by $25 and $100 contributions, and noting that “[i]t is far from clear .
6
. . that even a zero‐dollar disclosure threshold would succumb to
7
exacting scrutiny”). We thus also sustain the district court’s
8
approval of the disclosure threshold.
POLITICAL COMMITTEE CONTRIBUTION LIMITS
9
10
Vermont law provides that a “political committee . . . shall not
11
accept contributions totaling more than $2,000.00 from a single
12
source, political committee or political party in any two‐year general
13
election cycle.” Vt. Stat. Ann. tit. 17, § 2805(a).19 We have previously
14
held that it is “unquestionably constitutional” for the State to limit
to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 439 (4th
Cir. 2008).
19 As mentioned in note 4 supra, new contribution limits will take effect on
January 1, 2015.
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contributions to groups “making contributions to or coordinated
2
expenditures with candidates for office.” Landell, 382 F.3d at 140.
3
As a result, Vermont may impose contribution limits on VRLC‐PC,
4
an entity that makes contributions to candidates. The only question
5
here is whether the statute’s contribution limits are unconstitutional
6
as applied to VRLC‐FIPE, which claims to be an independent‐
7
expenditure‐only PAC.
8
I.
Campaign Finance Standards of Review
A.
9
Expenditure Limits
10
Strict scrutiny applies when the government seeks to ban or
11
limit political expenditures. Ognibene v. Parkes, 671 F.3d 174, 182 (2d
12
Cir. 2012). In order for a restriction to survive strict scrutiny, the
13
government must show that the restriction “furthers a compelling
14
interest and is narrowly tailored to achieve that interest.” Citizens
15
United, 558 U.S. at 340 (internal citations and quotation marks
16
omitted).
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The Supreme Court has recognized only one interest that is
2
sufficiently compelling to justify an expenditure limitation:
3
preventing the actuality or appearance of quid pro quo corruption. Id.
4
at 358‐59. It has expressly rejected any governmental interest in
5
preventing the appearance of influence or access, id. at 359‐60,
6
limiting distortions of the marketplace of ideas, id. at 349‐50,
7
protecting the dissenting shareholders of corporate speakers, id. at
8
361‐62, equalizing the resources of candidates, Buckley, 424 U.S. at
9
56, or ensuring that government officials do not devote excessive
10
time to raising money, Randall, 548 U.S. at 243, 245‐46. The anti‐
11
corruption rationale cannot justify a limitation on expenditures that
12
are not coordinated with any political campaign. Ariz. Free Enter.
13
Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2826 (2011).
14
B.
15
Contribution limits are “more leniently reviewed because they
16
pose only indirect constraints on speech and associational rights.”
Contribution Limits
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Ognibene, 671 F.3d at 182‐83. Contribution limitations or bans “are
2
permissible as long as they are closely drawn to address a
3
sufficiently important state interest.” Id. at 183; see also Green Party of
4
Conn. v. Garfield, 616 F.3d 189, 199 (2d Cir. 2010) (quoting Fed.
5
Election Comm’n v. Beaumont, 539 U.S. 146, 162 (2003)). The Supreme
6
Court recently stated that campaign finance restrictions must target
7
quid pro quo corruption or its appearance in order to survive First
8
Amendment scrutiny. McCutcheon v. Fed. Election Comm’n, 134 S. Ct.
9
1434, 1441‐42, 1450 (2014).20 Special deference is due to the
10
legislature’s selection of the precise contribution amount limits.
11
Ognibene, 671 F.3d at 189.
20
The Court also allowed for the possibility that such regulation could be
justified as preventing circumvention of contribution limits. McCutcheon v. Fed.
Election Comm’n, 134 S. Ct. 1434, 1452‐53, 1457 (2014); see also Ognibene v. Parkes,
671 F.3d 174, 194‐95 (2d Cir. 2012) (identifying as two interests that could justify
contribution limitations: (1) an anti‐corruption interest in avoiding quid pro quo
corruption or the appearance of quid pro quo corruption; and (2) an “anti‐
circumvention interest in preventing the evasion of valid contribution limits.”).
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II.
Independent‐Expenditure‐Only Groups
2
In Citizens United, the Supreme Court declared that “‘[t]he
3
absence of prearrangement and coordination of an expenditure with
4
the candidate or his agent not only undermines the value of the
5
expenditure to the candidate, but also alleviates the danger that
6
expenditures will be given as a quid pro quo for improper
7
commitments from the candidate.’” 558 U.S. at 345 (quoting Buckley,
8
424 U.S. at 47); see also Cal. Med. Ass’n v. Fed. Election Comm’n, 453
9
U.S. 182, 203 (1981) (Blackmun, J., concurring in part and concurring
10
in the judgment) (“Cal. Med.”). As we have noted, see N.Y. Progress
11
& Prot. PAC v. Walsh, 733 F.3d 483, 487 (2d Cir. 2013), several Courts
12
of Appeals have concluded that an anti‐corruption rationale
13
therefore cannot apply to contributions to groups that engage only
14
in independent expenditures. See Wisc. Right to Life State Political
15
Action Comm. v. Barland, 664 F.3d 139, 154 (7th Cir. 2011) (“WRLC I”);
16
Thalheimer v. City of San Diego, 645 F.3d 1109, 1118‐21 (9th Cir. 2011);
66
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NCRL III, 525 F.3d at 295. For example, the U.S. Court of Appeals
2
for the District of Columbia stated that, in the context of groups that
3
make independent expenditures only, the Supreme “Court has
4
effectively held that there is no corrupting ‘quid’ for which a
5
candidate might in exchange offer a corrupt ‘quo.’” SpeechNow.org v.
6
Fed. Election Comm’n, 599 F.3d 686, 694‐95 (D.C. Cir. 2010) (en banc).
7
8
contribution limits may not be constitutionally applied to
9
“independent expenditure” entities. But even if contribution limits
10
would be unconstitutional as applied to independent‐expenditure‐
11
only groups, VRLC‐FIPE would not succeed here. The district court
12
correctly concluded that based on the undisputed facts presented at
13
summary judgment, VRLC‐FIPE is enmeshed financially and
14
organizationally with VRLC‐PC, a PAC that makes direct
15
contributions to candidates. Thus, because contribution limits are
VRLC‐FIPE urges that we follow these courts and hold that
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constitutional as applied to VRLC‐PC, we agree with the district
2
court that they also may be applied to VRLC‐FIPE.
3
In holding that independent expenditures cannot give rise to
4
quid pro quo corruption, the Supreme Court focused on the “absence
5
of prearrangement and coordination” when expenditures are
6
independent. Citizens United, 558 U.S. at 345, 357‐61; see also Ala.
7
Democratic Conference v. Broussard, 541 F. App’x 931, 935 (11th Cir.
8
2013) (per curiam) (“In prohibiting limits on independent
9
expenditures, Citizens United heavily emphasized the independent,
10
uncoordinated nature of those expenditures, which alleviates
11
concerns about corruption.”). Although some courts have held that
12
the creation of separate bank accounts is by itself sufficient to treat
13
the entity as an independent‐expenditure‐only group, see, e.g.,
14
Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 12 (D.C. Cir. 2009),21
Even the D.C. district courts, however, have not resolved whether Emily’s List
holds that a separate bank account alone is sufficient to allow for unlimited
expenditures. Compare Stop This Insanity, Inc. Emp. Leadership Fund v. Fed. Election
Commʹn, 902 F. Supp. 2d 23, 43 (D.D.C. 2012) (“When a single entity is allowed to
21
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we do not believe that is enough to ensure there is a lack of
2
“prearrangement and coordination.” A separate bank account may
3
be relevant, but it does not prevent coordinated expenditures –
4
whereby funds are spent in coordination with the candidate. See
5
Stop This Insanity, Inc. Emp. Leadership Fund v. Fed. Election Comm’n,
6
902 F. Supp. 2d 23, 43 (D.D.C. 2012).
7
Nor is it enough to merely state in organizational documents
8
that a group is an independent‐expenditure‐only group. Some
9
actual organizational separation between the groups must exist to
10
assure that the expenditures are in fact uncoordinated. We therefore
11
decline to adopt the reasoning of the Fourth Circuit in NCRL III.
12
There, the Fourth Circuit rejected North Carolina’s argument that
make both limited direct contributions and unlimited independent expenditures,
keeping the bank accounts for those two purposes separate is simply insufficient
to overcome the appearance that the entity is in cahoots with the candidates and
parties that it coordinates with and supports.”), with Carey v. Fed. Election
Comm’n, 791 F. Supp. 2d 121, 135 (D.D.C. 2011) (“As long as Plaintiffs strictly
segregate these funds . . . they are free to seek and expend unlimited soft money
funds geared toward independent expenditures.”).
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NCRL‐FIPE (a similar organization to VRLC‐FIPE) was “not actually
2
an independent expenditure committee because it [was] ‘closely
3
intertwined’” with NCRL and NCRL‐PAC, two organizations
4
(similar to VRLC and VRLC‐PC) that did not limit their activities to
5
independent expenditures. NCRL III, 525 F.3d at 294 n.8. The
6
Fourth
7
organizational documents that the group was “independent as a
8
matter of law.”22 Id. We do not agree that organizational documents
9
alone satisfy the anti‐corruption concern with coordinated
10
Circuit
concluded
based
only
on
NCRL‐FIPE’s
expenditures that may justify contribution limits.
11
There is little guidance from other courts on examining
12
coordination of expenditures, but we conclude that, at a minimum,
Dissenting from this conclusion, Judge Michael stated that “at any given
moment, the same director or staffer is on the one hand ensuring that NCRL–
PACʹs activities follow a candidateʹs campaign strategy, while on the other hand
‘independently’ designing NCRL–FIPEʹs expenditure strategy to promote that
same candidate.” NCRL III, 525 F.3d 274, 336 (4th Cir. 2008) (Michael, J.,
dissenting). He concluded that without any organizational separation it was
“hard to understand how NCRL‐FIPE could, whether intentionally or not, avoid
incorporating the coordinated campaign strategies used by NCRL‐PAC into its
own ostensibly independent campaign work.” Id.
22
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there must be some organizational separation to lessen the risks of
2
coordinated
3
organizational documents do not ensure that “information [] will
4
only be used for independent expenditures.” Catholic Leadership
5
Coal. of Tex. v. Reisman, No. A‐12‐CA‐566‐SS, 2013 WL 2404066, at *17
6
(W.D. Tex. May 30, 2013) (emphasis added) (“The informational wall
7
[that plaintiff] asserts it can raise to keep its independent
8
expenditure activities entirely separate from its direct campaign
9
contribution activities is thin at best. This triggers the precise
10
dangers of corruption, and the appearance of corruption, which
11
motivated the Court in Buckley to uphold the challenged
12
contribution limits.”). As discussed below, whether a group is
13
functionally distinct from a non‐independent‐expenditure‐only
14
entity may depend on factors such as the overlap of staff and
15
resources, the lack of financial independence, the coordination of
16
activities, and the flow of information between the entities.
expenditures.
Separate
71
bank
accounts
and
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The decisions cited by VRLC‐FIPE to challenge the district
2
court’s conclusion that VRLC‐FIPE is not sufficiently separate from
3
VRLC‐PC are inapposite. In Citizens United, the Supreme Court
4
observed that a corporation’s “PAC is a separate association from
5
the corporation.” 558 U.S. at 337. But it did so only to emphasize
6
how the challenged statute was “a ban on corporate speech
7
notwithstanding the fact that a PAC created by a corporation can
8
still speak.” Id. In Cal. Med., the Supreme Court observed that a
9
PAC was not “merely the mouthpiece” of its contributor because the
10
PAC was a “multicandidate political committee” and “receive[d]
11
contributions from more than 50 persons during a calendar year.”
12
453 U.S. at 196. The Court’s reliance on these facts supports our
13
conclusion that whether two entities are separate depends on their
14
particular circumstances. The Supreme Court rejected the assertion
15
that a contributor’s contributions to a PAC “should receive the same
16
constitutional protection as [the PAC’s] independent expenditures.”
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Id. at 195. These decisions do not support VRLC‐FIPE’s position that
2
the facts regarding its relationships with VRLC and VRLC‐PC are
3
irrelevant to the constitutional analysis. See Ala. Democratic
4
Conference, 541 F. App’x at 936 (“In this as‐applied challenge,
5
whether the establishment of separate bank accounts by . . . a hybrid
6
independent expenditure and campaign contribution organization[]
7
eliminates all corruption concerns is a question of fact.”)
8
9
10
11
III.
Undisputed Facts in the District Court’s Evaluation of the
Summary Judgment Motions
The role of the court on a summary judgment motion is “to
12
determine whether, as to any material issue, a genuine factual
13
dispute exists.” In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009).
14
VRLC‐FIPE did not contest the evidence presented by Vermont or
15
present opposing evidence at summary judgment. Vermont argued
16
“that [VRLC‐FIPE] in fact is enmeshed completely with [VRLC‐PC],
17
which contributes funds to candidates.” VRLC‐FIPE apparently
18
“chose[] not to take the fallback position of contesting the factual
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showing [Vermont] has made to prove its point,” but simply
2
asserted that “its status is cemented as a matter of law” and argued
3
that it is “entitled to judgment as a matter of law regardless of
4
[Vermont’s] evidence.” Vt. Right to Life Comm., Inc., 875 F. Supp. 2d
5
at 384, 404‐05.
6
The State’s summary judgment motion included numerous
7
depositions, financial reports, emails, meeting minutes, and expert
8
reports. Both parties attached statements of undisputed materials
9
facts to their summary judgment motions. In its response brief, the
10
State attached a statement of disputed facts, which contested
11
Plaintiffs’ showing. Plaintiffs did not file an opposing statement of
12
disputed facts. Therefore, we, like the district court, consider the
13
factual record undisputed. On the basis of the State’s evidence,
14
described below, we agree with the district court that there was no
15
genuine dispute of material fact as to VRLC‐FIPE’s organizational
16
separation from VRLC‐PC.
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VRLC‐PC is registered with the Federal Election Commission
2
as a federal PAC and was created by VRLC to engage in federal and
3
state campaign activities, including making direct contributions to
4
candidates. It is clearly not an independent‐expenditure‐only
5
group. VRLC‐FIPE offers only two facts to demonstrate that it must
6
be treated as separate from VRLC‐PC. One, the organizational
7
documents show that VRLC created two committees, VRLC‐PC and
8
VRLC‐FIPE. Two, VRLC‐FIPE maintains a separate bank account.
9
For the reasons discussed above, these facts alone are not enough to
10
hold that VRLC‐FIPE is an independent‐expenditure‐only group
11
when, based on the State’s undisputed evidence, it is otherwise
12
indistinguishable from the non‐independent‐expenditure‐only
13
group, VRLC‐PC.
14
First, the fact that there are two separate bank accounts does
15
not mean the funds were actually treated as separate. An
16
accountant who examined VLRC’s, VRLC‐FIPE’s, and VRLC‐PC’s
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structure and finances for the State described “a fluidity of funds
2
between VLRC‐FIPE and VRLC‐PC.” He found that VRLC
3
transferred funds from VRLC‐PC to VRLC‐FIPE if VRLC‐FIPE
4
lacked the resources to engage in a certain activity. VRLC‐FIPE’s
5
treasurer testified that the groups use VRLC‐PC’s money to fund
6
VRLC‐FIPE’s primary activity of producing voter guides when
7
VRLC‐FIPE lacks the funding. Meeting minutes also show that the
8
two groups do not consider their funding streams as distinct. In a
9
2008 VRLC‐PC committee meeting, for example, those present
10
described a joint fundraising goal in combined VRLC‐FIPE and
11
VRLC‐PC funds. Taken as a whole, the groups’ financial history and
12
related documents do not support a finding that there is any
13
operational barrier between VRLC‐FIPE and VRLC‐PC. 23
We acknowledge that the record does not show that funds from VRLC‐FIPE
were used for candidate contributions. Nonetheless, the “fluidity of funds” is
enough to show that the accounts were not kept sufficiently separate to establish
that VRLC‐FIPE is an independent group capable of succeeding with an as‐
applied challenge to contribution limits.
23
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Next is the organizational structure of the groups; here again
2
there is no evidence that VRLC‐FIPE is segregated at all from VRLC‐
3
PC. Both are committees of the umbrella organization VRLC, which,
4
by itself, would not show coordination, but the State’s accountant
5
represented that VRLC has complete control over VRLC‐FIPE’s and
6
VRLC‐PC’s structure and finances. The members of both
7
committees are appointed by the president of VRLC with the
8
approval of VRLC’s board. The committees share a substantial
9
overlap in membership. They meet at the same time and same place
10
and often discuss important tactical campaign issues with no regard
11
for the separation of the two committees. The Executive Director of
12
VRLC (and its principal official), Mary Hahn Beerworth, is also an ex
13
officio member of VRLC‐FIPE’s committee; she attends VRLC‐FIPE
14
and VRLC‐PC committee meetings and advises both. The Chair of
15
VRLC‐PC, Michelle Morin, is also a member of VRLC’s Board of
16
Directors and a member of VRLC‐FIPE.
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Then there are VRLC‐FIPE’s actual activities. It appears that
2
VRLC‐FIPE’s primary purpose is the production of voter guides
3
describing the pro‐life positions of candidates in each county in
4
Vermont. This activity, however, is done in concert with VRLC‐PC.
5
Together the two groups produce and pay for the guides, which
6
often list both groups as sponsors. VRLC‐PC in turn bases its
7
endorsement decisions on these voter guides. Beerworth and Morin
8
then decide whether to provide the candidates that VRLC‐PC
9
endorses with access to the organization’s support phone mailing
10
list. There is no point at which VRLC‐FIPE separates itself from the
11
lines of communication between the candidate, VRLC, and VRLC‐
12
PC. At every step of the campaign process, it is completely
13
enmeshed with VRLC‐PC.
14
The 2010 campaign exemplifies the groups’ structural melding
15
and absence of any informational or activities wall. In 2010,
16
Beerworth advised Brian Dubie (VRLC‐PC has endorsed Dubie in
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every election in which he has run), the Republican candidate for
2
Governor, and members of his campaign staff on issues. This same
3
year, the Dubie campaign accepted more than $900 worth of VRLC’s
4
support phone lists as an in‐kind contribution.
5
Because VRLC‐FIPE chose not to contest the Defendants’
6
Statement of Undisputed Material Facts or its evidence in support of
7
its motion for summary judgment, we – like the district court – are
8
limited to the State’s evidence. There is nothing in the record that
9
raises a genuine dispute as to whether VRLC‐FIPE operated as an
10
entity apart from VRLC‐PC. It relied on funding from VRLC and
11
VRLC‐PC when necessary. It was comprised of the same people –
12
including VRLC‐PC’s own chairwoman. It worked with VRLC‐PC
13
on its primary, if not only, project, voter guides. It received its
14
information and advice from the same sources. It met at the same
15
time and place. Uncontroverted, this evidence is sufficient to
16
conclude that VRLC‐FIPE is not meaningfully distinct from VRLC‐
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PC, and affirm the district court’s grant of Defendants’ summary
2
judgment motion on this issue.
3
In Colorado Republican Federal Campaign Committee v. Federal
4
Election Commission, the Supreme Court rejected the argument that a
5
party’s expenditure is coordinated “because a party and its
6
candidate are identical,” saying “[w]e cannot assume . . . that this is
7
so.” 518 U.S. 604, 622 (1996). Plaintiffs‐Appellants ask this Court to
8
follow Colorado Republican. Here, however, we do not assume that
9
VRLC‐FIPE and VRLC‐PC are identical; we, like the district court,
10
have examined the undisputed facts and conclude that VRLC‐FIPE
11
has presented no evidence to raise a genuine dispute of material fact
12
about its independence from VRLC’s non‐independent‐expenditure‐
13
only entity, VRLC‐PC.
14
IV.
15
16
Contribution Limits as Applied to VRLC‐FIPE
Those
courts
that
have
found
contribution
limits
unconstitutional as applied to independent‐expenditure‐only groups
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have done so on the basis of the holding in Citizens United that
2
independent expenditures do not carry the danger that the
3
expenditure will be given as quid pro quo for commitments from the
4
candidate. See, e.g., WRLC I, 664 F.3d at 143; NCRL III, 525 F.3d at
5
293‐95. Such expenditures are not prearranged or coordinated with
6
the candidate. Separate bank accounts alone, however, do not
7
always eliminate coordinated expenditures. Some organizational
8
divide must exist to ensure that the two are separate – that the
9
independent expenditures are truly spent independent of any
10
coordination with a candidate.
11
VRLC‐FIPE is indistinguishable from VRLC‐PC, a non‐
12
independent‐expenditure‐only group. As discussed above, this is
13
clear from the total overlap of staff and resources, the fluidity of
14
funds, and the lack of any informational barrier between the entities.
15
We acknowledge, though, that especially with committees that
16
operate with low funding levels, small staff, and few resources, it
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will be difficult at times to maintain separation among those
2
committees. Nevertheless, in the absence of any opposing evidence
3
here, we have no basis to find that VRLC‐FIPE is distinct from the
4
non‐independent‐expenditure‐only organization VRLC‐PC.
5
We have held that the state may impose contribution limits on
6
some groups – groups such as VRLC‐PC that directly contribute or
7
coordinate expenditures with campaigns. Where VRLC‐FIPE is
8
functionally indistinguishable from VRLC‐PC, the same limits may
9
constitutionally apply to it. “The Supreme Court has upheld
10
limitations on contributions to entities whose relationships with
11
candidates are sufficiently close to justify concerns about corruption
12
or the appearance thereof.” Long Beach Area Chamber of Commerce v.
13
City of Long Beach, 603 F.3d 684, 696 (9th Cir. 2010); accord McConnell,
14
540 U.S. at 154‐55 (upholding limitations on contributions to
15
national parties because “the close relationship between federal
16
officeholders and the national parties, as well as the means by which
82
84
Case: 12-2904
Document: 217-1
Page: 83
07/02/2014
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No. 12‐2904‐cv
Vermont Right to Life Committee, Inc., et al. v. Sorrell, et al.
1
parties have traded on that relationship, . . . have made all large soft‐
2
money contributions to national parties suspect”); Cal. Med., 453 U.S.
3
at 203 (Blackmun, J., concurring in part and concurring in the
4
judgment)
5
“multicandidate
6
relationship with candidates and office holders made them
7
“conduits for contributions to candidates, and as such they pose[d] a
8
perceived threat of actual or potential corruption”). It is the
9
requirement of independence – the absence of “prearrangement and
10
coordination” – that alleviates the danger that expenditures will be
11
spent as quid pro quo for improper commitments from the candidate.
12
VRLC‐PC participates in federal and state elections, makes direct
13
contributions to candidates, and works with campaigns. It is an
14
organization with the type of close relationship to candidates that
15
allows for state disclosure requirements and financial limitations.
16
Where VRLC‐FIPE cannot be functionally distinguished from
(upholding
political
limitations
committees”
83
on
contributions
because
their
to
close
Case: 12-2904
Document: 217-1
Page: 84
07/02/2014
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No. 12‐2904‐cv
Vermont Right to Life Committee, Inc., et al. v. Sorrell, et al.
1
VRLC‐PC, the same concerns apply. Therefore, we agree with the
2
district court that Vermont’s contribution limits as applied to VRLC‐
3
FIPE are permitted.
CONCLUSION
4
5
For the reasons given above, we AFFIRM the judgment of the
6
district court in all respects.
84
84
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